IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Misc. Case No: HAM 076 of 2012
(Criminal Case No: HAC 049 of 2011)

BETWEEN:

MUSKAN BALAGGAN
Applicant

AND:

THE STATE
Respondent

Hearing & Ruling: 21 May 2012
Counsel: Applicant in person
Ms I. Whippy for State

RULING

[1]	The accused, Balaggan applies for the alleged drugs to be tested independently at her expenses. The application is made under the Illicit Drugs Control Act 2004, section 30 (3) (d).

[2]	The application was filed a week before the trial was scheduled to commence. Balaggan's reasons for bringing this application so late are that she is in custody and that she was under the impression that the alleged drugs had been destroyed after testing. 

[3]	Section 30 (3) (d) falls under Division 5 of the Act. Division 5 outlines the post seizure procedures for disposal and storage of seized illicit drugs. Section 30 (3) (d) reads:

If the Commissioner of Police, in consultation with the Director of Public Prosecutions is satisfied that –

(a) the seized illicit drug, controlled chemical or controlled equipment is illegal property liable to forfeiture under this Act;

(b) the provisions of this section relating to the taking and analysis of samples have been complied with;

(c) sufficient samples have been taken, analysed and preserved to enable all material questions relating to the seized illicit drug, controlled chemical or controlled equipment to be property determined in any actual or contemplated proceedings under this Act; and

(d) any suspect or accused person in relation to the seizure has had reasonable opportunity to have samples independently analysed at that person's expense;

the Commissioner of Police may apply to the court for an order for disposal of the illicit drug, controlled chemical or controlled equipment.

[4]	In paragraph 4 of her affidavit, Balaggan states:

"I am given this right at law under the Illicit Drugs Control Act (2004) Section 30(3)(d)."

[5]	It is clear that the purpose of section 30 (3) is to safeguard the fairness of a trial by protecting the physical evidence that is of a dangerous nature while at the same time giving the State the ability to destroy the alleged dangerous substance because of its dangerous characteristics. Before the Commissioner of Police applies for an order of disposal, he must be satisfied of all the requirements prescribed by subsections (a)-(d). If the Commissioner has not applied for a disposal order, as is the case here, the accused is not entitled to have the alleged drugs tested independently. Thus, Balaggan's application is misconceived. 

[6]	In paragraph 5 of her affidavit, Balaggan states:

"I want this independent testing done as there are inconsistencies in the Australian testing as to the substance and further I want to exercise my rights in this regard."

[7]	At this stage, is difficult to accept Balaggan's contention that there are inconsistencies in the Australian testing of the alleged drugs, when the trial has not commenced. Balaggan, of course, has the right to cross-examine the expert witnesses of the prosecution, if consistencies are revealed when they give evidence at trial. It is too early to say that there are inconsistencies when the evidence has not been received by the Court. 

[8]	In paragraph 6 of her affidavit, Balaggan states:

"If I am not given this right I will suffer immense prejudice. The Prosecution will not suffer any prejudice by me exercising my rights at law."

[9]	What immense prejudice Balaggan will suffer if the alleged drugs are not tested independently by her has not been disclosed to this Court. Nor has been the Court disclosed details of Balaggan's experts and her financial capability to carry out such a test. I bear in mind that Balaggan as an accused carries no burden to prove anything. The prosecution carries the burden to prove the alleged substance is an illicit drug. 

[10]	Balaggan contends that the prosecution will not suffer any prejudice by this late application. How Balaggan has arrived to such a conclusion is unclear. Even if I were to accept that the prosecution will not suffer any prejudice, Balaggan's co-accused who has been in custody on remand since he was arrested on 26 January 2011, will be prejudiced, if the trial is vacated to allow Balaggan to test the alleged drugs independently. Balaggan's co-accused has not waived his right to a speedy trial and any further delay in holding a trial will mean that he is being punished without finding of guilt.

[11]	Balaggan does not disclose in her affidavit why she was under the impression that the alleged drugs had been destroyed after testing especially when there was no application made to the Court for an order of destruction. Balaggan states that she came to know of the existence of the alleged drugs when the prosecution applied to have the substance brought to Fiji from Australia for the trial commencing on 21 May 2012. 

[12]	Balaggan was represented in this case by counsel until she accused him of rape and this Court disqualified counsel from further representation. There is no suggestion by Balaggan that her former counsel was incompetent for not applying for an independent test of the alleged drugs. No application was made by counsel in the one year he was on record. 

[13]	For all these reasons, I am satisfied that this application is incompetent, untimely and lacks details. 

[14]	The application is refused.

Daniel Goundar
JUDGE

At Suva
21 May 2012

Solicitors:
Applicant in Person
Office of the Director of Public Prosecutions for State